Saturday, January 07, 2006

Appointment process more political?

Great new paper from Sherry reviewed by Solum. More on the substance later, but this description of Blackmun's appointment caught my eye:
Justice Blackmun, for example, made a name for himself by quietly
practicing law for sixteen years before he was nominated to the Eighth Circuit
by President Eisenhower.17 Justice Blackmun was a moderate Republican
who had supported Democrat Hubert Humphrey’s Senate campaign. In his
eleven years on the Court of Appeals, Justice Blackmun earned a reputation
as a careful, hardworking, and moderate judge. His Court of Appeals opinions
are not particularly ideological, and his nomination to the Supreme Court was
probably prompted as much by his longstanding friendship with Chief Justice
Warren Burger as by his obvious competence.
This is during a description of how the process has gotten more political because the division between law and politics has gotten fuzzier, giving judges more power.

But doesn't this description seem at least a little like current appointees? The appointment of Roberts, and to some extent, Alito--who are wildly respected by everyone but not apparently as ideological as Bork, Scalia or Thomas--seems to attack the very thesis of the paper, that the judiciary is being politicized. Also, doesn't Harriet Miers fit more into the Blackmun role, of someone who was careful and hardworking, but not famous, and largely just a friendship appointment? Souter seems like a carbon copy in that respect, too. I think things are more complicated than the paper's progression makes out.

The main thesis, that even conservatives are starting to agree that politics and constitutional law can't be separated--and so are pushing for "popular constitutionalism"--also seems to have some intuitive grab, but be a bit overly broad...more on that some other time.


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